Elsworth v The Queen

[2010] NZCA 508

IN THE COURT OF APPEAL OF NEW ZEALAND

CA364/2010
[2010] NZCA 508

BETWEENJESSE JACK ELSWORTH

Appellant

ANDTHE QUEEN

Respondent

Hearing:3 November 2010

Court:Randerson, Potter and Cooper JJ

Counsel:R M Mansfield for Appellant

B D Tantrum and D M Robinson for Respondent

Judgment:16 November 2010 at 12.30 p.m.

JUDGMENT OF THE COURT

The appeal is dismissed.

__________________________________________________________________

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1]        Jesse Jack Elsworth appeals against a sentence of four and a half years imprisonment imposed by Judge Treston in the District Court at Waitakere on 21 May 2010 on the ground that it is manifestly excessive.[1] 

Mr Elsworth was sentenced on six charges to which he entered guilty pleas on 11 February 2010 after new charges were laid.  The sentence of four and a half years imprisonment was imposed on a charge of possession of methamphetamine for supply.  The Judge imposed concurrent sentences of imprisonment on charges of possession of a precursor substance, namely Toluene between 30 July 2009 and 21 October 2009, possession of utensils, namely a pipe for smoking methamphetamine, two charges for breach of sentences of supervision on 18 May 2009 and 29 September 2009 and one charge of breach of community work on 14 July 2009.

Factual background

[1]       R v Elsworth DC Waitakere CRI-2009-090-11107, 21 May 2010.

[2]        Over a period of about three months between July and October 2009 the appellant was observed buying large quantities of Toluene, a chemical commonly used in the manufacture of methamphetamine.  During that period the appellant with an associate purchased over 100 litres of Toluene in 20 litre containers.  Analysis of text messages obtained by the police showed that the appellant and his associate were supplying the precursor chemical to other persons knowing that it was to be used to manufacture methamphetamine.

[3]        Police executed a search at the appellant’s home address.  They located thirty three grams of methamphetamine, approximately $8,700 in cash, a methamphetamine pipe bearing white residue and a butane torch.  The methamphetamine found had a street value of approximately $33,000.

[4]        At the time the appellant was subject to sentences of community work and supervision which he breached on three occasions.

Sentencing judgment

[5]        In a careful judgment, Judge Treston summarised the facts and referred to the previous relevant convictions of the appellant, including convictions for cannabis related offending in 2004 and two previous convictions for breach of community work.  He noted the number of previous convictions totalled twenty seven.

[6]        He said it was not in dispute that the lead charge of possession of methamphetamine for supply fell within Band 2 in R v Fatu,[2] attracting a starting point for sentencing in the range of three to nine years imprisonment.  He made reference to a number of other decisions provided by the Crown.  He noted an aggravating feature of the offending was that the appellant was subject to a sentence of supervision when he committed the offences for which he was to be sentenced.  He noted the elements of premeditation present in the drug related offending and that the supply of the precursor chemical Toluene went on for quite some time.  He said the appellant was entitled to credit for his pleas of guilty, his expressions of remorse and his desire to rehabilitate himself and to get out of the treadmill of drug use to which he had become subject.[3]

[2]     R v Fatu [2006] 2 NZLR 72 (CA).

[3] At [23].

[7]        The Judge took a starting point for the lead charge of possession of methamphetamine for supply, of five years imprisonment.  He applied an uplift of one year for the charge of possession of a precursor substance, noting that it took place over a significant period of time.  He applied a further uplift of one year because these offences were committed when the appellant was subject to sentences of the Court, which the Judge noted had been largely ignored.

[8]        From the adjusted starting point of seven years imprisonment the Judge allowed a discount of two and a half years (35.7 per cent), resulting in an effective end sentence of four years and six months imprisonment. 

Arguments for the appellant

[9]        Mr Mansfield submitted that the initial starting point adopted by the sentencing Judge was manifestly excessive, that the two uplifts of one year were in each case too high, and that the reduction was inadequate because it did not sufficiently take account of the steps taken by the appellant to address his drug addiction (Mr Mansfield handed up to the Court three certificates relating to courses completed by Mr Elsworth while in prison).

[10]       As to the starting point, Mr Mansfield submitted it was too high on the basis of both the authorities[4] and the place in Band 2 of Fatu (33 grams being in the bottom twenty per cent of Band 2 which applies to 5 to 250 grams of methamphetamine).  He submitted that a starting point of four years was appropriate.  In relation to the uplifts, he submitted these should have each been no more than six months and possibly less, rather than the year adopted in each case by the Judge.  Accordingly he submitted that the seven years adjusted starting point was manifestly excessive.

[4]     R v Baird HC Hamilton CRI-2007-419-29, 3 July 2009; R v Brewis HC Auckland CRI-2009-090-6454, 15 December 2009; R v Kake HC Auckland CRI-2007-004-6217, 12 November 2008; R v O’Connor HC Whangarei CRI-2007-088-4582, 22 October 2008; R v Gray HC Auckland CRI-2005-044-4815, 12 October 2007; R v Fonotia [2007] NZCA 188; R v Harris HC Palmerston North CRI-2006-054-1008, 25 February 2007.  Most of these authorities were also before the sentencing Judge.

[11]       Mr Mansfield acknowledged that he could not quarrel with the discount allowed of approximately thirty five per cent for the guilty pleas.  He explained the background to the guilty pleas, acknowledging that while the pleas were entered on 11 February 2010, almost four months after the original committal hearing, they were entered at the first reasonable opportunity after new charges were laid following discussions.  But he submitted that a further reduction of up to ten per cent should have been allowed.  He submitted this was appropriate to reflect family support, the appellant’s desire to rehabilitate and the steps he has taken, and also that the offending arose from the appellant’s severe methamphetamine addiction.  He submitted an end sentence of no more than three years and nine months imprisonment should be substituted for the sentence of four and a half years.

Discussion

[12]       The Crown had advanced to the sentencing Judge and confirmed in submissions on appeal, that a starting point of five and a half to six years imprisonment was appropriate for the two most serious offences.  If a starting point of four years for the methamphetamine offending were taken, as advanced by Mr Mansfield, an uplift of up to eighteen months for the precursor offending would have been quite appropriate.  This offending extended over a period of about three months and involved 100 litres of the precursor chemical.  It was serious offending for which a maximum penalty of seven years imprisonment is prescribed. 

[13]       The uplift of twelve months applied to reflect that the drug related offending was committed while the appellant was subject to sentences of the Court was appropriate given the escalating seriousness of the appellant’s offending against a background of ongoing failure to comply with community-based sentences and interventions imposed to assist him to break the cycle of self-confessed drug addiction.  A starting point of six and a half years before mitigating factors could therefore be justified.

[14]       In addition, the Judge allowed a very generous discount of 35.7 per cent from the revised starting point of seven years.  In terms of Hessell v R[5] a thirty three percent discount will be available to those who plead guilty at the first reasonable opportunity.  The Court stated that the first reasonable opportunity will not be extended on the basis that plea bargaining or negotiations in relation to the charges was taking place.[6]  Accordingly in this case the Crown had submitted to the sentencing Judge that a discount in the vicinity of twenty per cent for the guilty pleas was appropriate.  The discount of 35.7 per cent was indeed generous and it is clear from the sentencing judgment[7] that it included allowance for the steps latterly taken by the appellant to address his drug addiction.

[5]     Hessell v R [2010] 2 NZLR 298.

[6] At [31].

[7] At [23].

[15]       We note that the Judge declined to apply a further uplift for the appellant’s previous convictions although he noted[8] that there could have been a further uplift in that respect.

[8] At [33].

[16]       Accordingly the end sentence of four and a half years imprisonment was within the range available to the sentencing Judge and is not manifestly excessive.

Result

[17]       The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent